Social justice and the judicial interpretation of international equal protection law

Abstract

AbstractSocial justice is turning into an international concern. This development is a response to the continuous rise of socioeconomic inequality – the gap between the rich and the poor –growing in several OECD member states since the 1970s. International human rights law (IHRL) presently only establishes a weak normative framework regarding social justice. This article argues that the full potential of this framework has still not been activated by international human rights adjudication. There are several reasons for this: a complex history of ideas suggesting little common understanding of the notion of social justice, the focus of international human rights adjudication on individual rather than constitutional justice, and the priority of liberty rights over equality rights. Yet, the domination of the liberal over the social in international human rights adjudication has started to change. The article shows how the social justice concern is beginning to be incorporated into IHRL by judicial interpretation of international equal protection and non-discrimination law (international equal protection law, IEPL). Integrating the social justice concern into IEPL is a legitimate yet transformative step as it increases judicial discretion at the international level. More than many other human rights, socioeconomic equality is highly context-specific and depends on a complex factual assessment of the local circumstances. This exacerbates the institutional legitimacy challenge levelled against international human rights courts. However, the article argues that the legitimacy challenge can be alleviated by focusing more on procedural rather than a substantive international review.